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Skriven 2006-09-06 23:31:20 av Whitehouse Press (1:3634/12.0)
Ärende: Press Release (0609066) for Wed, 2006 Sep 6
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Fact Sheet: The Administration's Legislation to Create Military Commissions
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For Immediate Release
September 6, 2006

Fact Sheet: The Administration's Legislation to Create Military Commissions


ÿÿÿÿÿ President Discusses Creation of Military Commissions to Try Suspected
Terrorists ÿÿÿÿÿ In Focus: National Security

Today, The Administration Submitted Draft Legislation To Create A Strong
And Effective Military Commission Structure.ÿ This structure will help meet
the President_s objective of winning the War on Terror and ensuring
terrorists can be prosecuted for their crimes in full and fair trials.ÿ
Detaining, questioning, and, where appropriate, prosecuting enemy
combatants for war crimes and other terrorism-related offenses is critical
to protecting our Nation and winning the War on Terror.
  þ Following The Supreme Court's Decision In Hamdan v. Rumsfeld, The
    Administration Is Working With Congress To Create A Process For
    Prosecuting Enemy Combatants That:
      þ Ensures terrorists can be brought to justice;
      þ Recognizes the nature of the enemy and the battlefield;
      þ Protects our national security interests;
      þ Affirms our national values; and
      þ Provides the accused a full and fair trial.
  þ The Administration's Proposal Is The Product Of Extensive Interagency
    Deliberations And Numerous Consultations With Members Of Congress And
    Military Lawyers In All Branches Of The Armed Services.ÿ Judge
    Advocates General (JAGs) and other lawyers in the Defense Department
    and other concerned agencies have provided multiple rounds of comments
    on the proposed legislation and have actively participated in the
    Administration's deliberations.ÿ Many of their comments and
    recommendations are reflected in provisions of the Bill.

Creating A New Code Of Military Commissions

The Bill's New Code Of Military Commissions (CMC) Adapts Relevant
Provisions Of The Uniform Code Of Military Justice (UCMJ) To The Military
Commission Context.ÿ The Administration has carefully reviewed the
procedures of the UCMJ and adopted or adapted certain UCMJ articles that
would be appropriate for these military commissions.ÿ The Bill would
provide for the trial by military commission of unlawful enemy combatants,
including members of al Qaeda, the Taliban, and other international
terrorists.ÿ The Bill codifies the CMC as chapter 47A to Title 10 of the
United States Code following the UCMJ, which is now at chapter 47.ÿ

The Bill Uses Existing Court-Martial Procedures Where They Make Sense For
Terrorists, But Separates The Military Commission Process From The
Court-Martial Process Used To Try Our Own Service Members. The proposed
procedures for military commissions would be separate from the UCMJ
provisions for courts-martial of U.S. service members, with separate
implementing rules.ÿ

The CMC Tracks The UCMJ Structure In Many Respects.ÿ The Bill establishes a
system of military commissions, presided over by a military judge, with
commission members drawn from the Armed Forces, and prosecutors and defense
counsel from the JAG Corps.ÿ The accused may also retain civilian defense
counsel if he or she so chooses.ÿ Trial procedures, sentencing, and
intermediate appellate review generally parallel the processes currently
provided under the UCMJ.ÿ The bill also provides for appellate review by
the United States Court of Appeals for the District of Columbia Circuit, as
provided for under the Detainee Treatment Act of 2005 (DTA).
  þ The Bill Establishes That The Military Judge, As In The Court-Martial
    Process, Has The Traditional Authority Of A Judge To Rule On Questions
    Of Law And Evidence.ÿ The military judge is not a voting member of the
    commission.ÿ
  þ The Bill Increases The Minimum Number Of Commission Members From Three
    To Five And Requires Twelve Commission Members For Any Case In Which
    The Death Penalty Is Sought.ÿ A conviction would require a vote of
    two-thirds of the commission members in non-death penalty cases.ÿ As
    with the UCMJ, the death penalty would require the unanimous vote of
    all 12 commission members.
  þ The Bill Proposes A Formal Military Appellate Process That Parallels
    The Appellate Process Under The UCMJ.ÿ Congress would establish a Court
    of Military Commission Review within the Department of Defense to hear
    appeals on questions of law.ÿ All convicted detainees would also be
    entitled to an appeal to the U.S. Court of Appeals for the D.C.
    Circuit, regardless of the length of their sentence.ÿ The Supreme Court
    could review decisions of the D.C. Circuit.

The CMC Provides The Accused With Substantial Due Process Rights,
Including:
      þ The accused has a right to a full and fair trial.
      þ The accused has a right to know the charges against him as soon as
        practicable.
      þ The accused is presumed innocent until proven guilty beyond a
        reasonable doubt by legal and competent evidence, with the burden
        of proof on the prosecution.
      þ The accused has a right to counsel, including military defense
        counsel and retained civilian defense counsel.
      þ The accused must have a reasonable opportunity to obtain witnesses
        and other evidence, including evidence in the possession of the
        government.
      þ The prosecution must disclose to the defense any exculpatory
        evidence known to it.
      þ The accused has the right to cross-examine witnesses who testify
        for the prosecution.
      þ The accused has a right not to testify against himself at a
        commission proceeding.
      þ Evidence may be admitted only if the judge finds it would have
        probative value to a reasonable person, and it must be excluded if
        its probative value is substantially outweighed by the danger of
        unfair prejudice.
      þ Statements obtained by use of torture are not admissible against
        the accused.
      þ Statements allegedly obtained through use of coercion are not
        admissible if the judge finds that the circumstances under which
        they were obtained render them unreliable or lacking in probative
        value.
      þ No person may attempt to coerce or by any unauthorized means
        influence the action of a commission or any commission member in
        reaching a finding or sentence.
      þ The commission proceedings must be open except in special
        circumstances where the judge makes specific findings.
      þ The accused has the right to at least two appeals from any
        conviction, including appeal to the D.C. Circuit.
      þ The accused may not be tried a second time for the same offense.

The Bill Departs From The UCMJ In Some Respects, Where The UCMJ_s
Provisions Would Be Inappropriate Or Impractical In The Trial Of
Terrorists.
  þ The CMC Eliminates The UCMJ Miranda-Type Requirements.ÿThe Bill
    recognizes the accused's privilege against self-incrimination during an
    actual commission proceeding.ÿ However, the Miranda-type rights
    provided in the UCMJ are broader than the civilian rule and could
    impede or limit the collection of intelligence during the interrogation
    of terrorist detainees.ÿ The Administration does not think Miranda
    warnings should be required before interrogating terrorist combatants.

The CMC Eliminates The UCMJ's Article 32 Investigation, Which Is A
Pre-Charging Proceeding Similar To A Civilian Grand Jury But Considerably
More Protective Of The Accused.ÿ Such a proceeding is unnecessary and
inappropriate for the trial of captured terrorists, who are already subject
to detention under the laws of war.
  þ The CMC Provides For The Introduction Of All Probative Evidence,
    Including Hearsay Evidence Where It Is Reliable.ÿ Commissions must try
    crimes based on evidence collected anywhere  from the battlefields in
    the War on Terror to foreign terrorist safe houses.ÿ It is imperative
    that military commissions have the ability to consider reliable hearsay
    statements because many witnesses are likely to be foreign nationals
    who might be difficult to compel to appear in court, and many witnesses
    may be unavailable due to military necessity, incarceration, injury, or
    death.ÿ International tribunals have similarly recognized the need to
    allow witnesses to testify to the hearsay statements made by others who
    are unavailable.
  þ The Bill Contains Strict Requirements Limiting The Introduction Of
    Classified Evidence Outside The Presence Of The Accused.ÿ The
    Administration believes the commissions must provide for the
    possibility of using classified evidence outside the presence of the
    accused in extraordinary circumstances.ÿ Sharing sensitive intelligence
    with captured terrorists could pose a serious risk to U.S. national
    security, particularly where the terrorists may be released before
    hostilities are over.ÿ Where the judge finds it is warranted and fair,
    military commissions can consider such evidence in extraordinary
    circumstances and subject to strict conditions:
      þ The CMC provides that before any classified evidence may be
        introduced outside the accused's presence, the head of the
        executive department that has classified the evidence must certify
        that sharing the evidence would harm national security and that the
        evidence has been declassified to the maximum extent possible.ÿ
      þ The military judge would be required to make specific findings that
        excluding the accused is warranted to protect classified
        information; that the admission of an unclassified summary or
        redacted version would not be an adequate substitute; that the
        exclusion is no broader than necessary; and that it would not
        violate the accused's right to a full and fair trial.
      þ The accused would have to be provided with a redacted transcript of
        any portion of the proceedings from which he is excluded and an
        unclassified summary of any evidence introduced, to the extent
        possible.
  þ No "Secret Trials" Will Be Held The Introduction Of Classified
    Evidence Is An Extraordinary Procedure That We Expect Would Be Used
    Only In Exceptional Circumstances And Only Where The Judge Finds It Is
    Appropriate And Fair.

Adding Definition To Common Article 3 Of The Geneva Conventions

The Bill Contains Several Provisions Addressing The Supreme Court's Ruling
That Common Article 3 Of The Geneva Conventions Applies To Our Armed
Conflict With Al Qaeda.ÿ If left undefined by statute, the application of
Common Article 3 would subject those who fight to defend America from
terrorist attack to an uncertain legal standard that may be influenced by
foreign tribunals.ÿ United States senior civilian and military leaders
accordingly have requested that Congress provide clear statutory definition
of United States obligations under Common Article 3.ÿ

Some Of The Terms In Common Article 3 Are Inherently Vague.ÿ Many of the
provisions of Common Article 3 prohibit actions that are universally
condemned, such as "violence to life," "murder," "mutilation," "torture,"
and the "taking of hostages."ÿ However, Common Article 3 also prohibits
"[o]utrages upon personal dignity, in particular, humiliating and degrading
treatment." This phrase is susceptible to uncertain and unpredictable
application.

Without The Clarification Provided By The Proposed Legislation, The Meaning
Of Common Article 3  The Standard That Now Applies To The Conduct Of Our
U.S. Personnel In The War On Terror  Would Change Based On The Evolving
Interpretations Of Tribunals And Governments Outside The United States.ÿ
The Supreme Court has said that in interpreting a treaty provision such as
Common Article 3, the meaning given to the treaty language by international
tribunals must be accorded "respectful consideration," and the
interpretations adopted by other state parties to the treaty should be
given "considerable weight."ÿ

The Standards Governing The Treatment Of Detainees By The United States In
The War On Terror Should Be Clearly Defined By U.S. Law, Consistent With
Our International Obligations.ÿ The Bill defines our obligations under
Common Article 3 by reference to the U.S. Constitutional standard already
adopted by Congress in the Detainee Treatment Act of 2005 (DTA).
  þ Last Year, After A Significant Public Debate On The Standard That
    Should Govern The Treatment Of Captured Al Qaeda Terrorists, Congress
    Adopted The Detainee Treatment Act Of 2005 (DTA).ÿ The DTA prohibits
    "cruel, inhuman, or degrading treatment or punishment," as defined by
    reference to the Fifth, Eighth, and Fourteenth Amendments of the U.S.
    Constitution, for all detainees held by the United States, regardless
    of nationality or geographic location.

The DTA Settled Questions About The Standard Governing The Treatment Of
Detainees By The United States In The War On Terror.ÿ The DTA's baseline
standard fully satisfies our international obligations under Common Article
3, and the Bill makes this clear for all purposes under Federal law.ÿ

The Meaning And Application Of The Vague Terms In Common Article 3 Also
Raise Questions About Possible Criminal Liability  The War Crimes Act, 18
U.S.C. õ 2441, Makes Any Violation Of Common Article 3 A Felony Offense For
U.S. Personnel.
  þ The Administration Believes That We Owe It To Those Called Upon To
    Handle Detainees In The War On Terror To Bring Clarity And Certainty To
    The War Crimes Act.ÿ The surest way to achieve that clarity and
    certainty is to define a list of specific offenses that constitute war
    crimes punishable as violations of Common Article 3.

Addressing Judicial Review Of Detainee Claims

The Bill Addresses Hamdan's Holding That The DTA's Judicial Review
Provisions Do Not Apply To The Hundreds Of Habeas Petitions Now Pending In
Federal Courts.ÿ The Bill makes clear that the DTA does govern all
challenges by detainees to their detention or trial before a military
commission, allowing review only of final Combatant Status Review Tribunal
(CSRT) determinations and military commission judgments.ÿ The
Administration believes this was Congress's intent under the DTA, that it
makes sense to restrict the accused's ability to pursue appellate remedies
until after the CSRT or military commission trial has been completed, and
that our courts should not be misused to hear all manner of other
challenges by terrorists lawfully held as enemy combatants in wartime.

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